Repeal the Second Amendment?

After the horrific shooting in Las Vegas last month, congressional Democrats, progressive pundits, and liberal activists, predictably and immediately, began calling for more, and more draconian, gun-control laws.

“It is long past time for Congress to take action on gun safety to save innocent lives,” said Bernie Sanders. According to Igor Volsky of Guns Down and the Center for American Progress: “It’s not enough to just limit the kind of people who own guns. You have to go after the guns themselves. Guns are the problem.” Joe Biden opined: “How long do we let gun violence tear families apart? Enough. Congress & the WH should act now to save lives. There’s no excuse for inaction.” Black Lives Matter agitator and New York Daily News columnist Shaun King blamed the shooting on “white privilege.”

In an opinion piece for the New York Times, titled “Repeal the Second Amendment,” Stephens declares that he has “never understood the conservative fetish for the Second Amendment.” From a law-and-order standpoint, “more guns means more murder.” From a personal-safety standpoint, “more guns means less safety.” From a national-security standpoint, “the Amendment’s suggestion that a ‘well-regulated militia’ is ‘necessary to the security of a free State,’ is quaint.” From a personal liberty standpoint, “the idea that an armed citizenry is the ultimate check on the ambitions and encroachments of government power is curious.”

There is no “gun-show loophole” per se; it’s a private-sale loophole, in other words the right to sell your own stuff.

The civilian AR-15 is not a true “assault rifle,” and banning such rifles would have little effect on the overall murder rate, since most homicides are committed with handguns.

It’s not true that 40 percent of gun owners buy without a background check; the real number is closer to one-fifth.

Stephens doesn’t support “gun buyback” programs, deeming that they make “little sense in a country awash with hundreds of millions of weapons.” He believes that “keeping guns out of the hands of mentally ill people is a sensible goal,” but that “due process is still owed to the potentially insane.” And although he thinks that “background checks for private gun sales are another fine idea,” their “effects on homicides will be negligible: guns recovered by police are rarely in the hands of their legal owners.”

But Stephens maintains that “Americans who claim to be outraged by gun crimes should want to do something more than tinker at the margins of a legal regime that most of the developed world rightly considers nuts.” Americans “should want to change it fundamentally and permanently.” He sees only one way to do this: “Repeal the Second Amendment.”

Stephens recognizes that “repealing the Amendment may seem like political Mission Impossible today,” but is hopeful because “in the era of same-sex marriage it’s worth recalling that most great causes begin as improbable ones.” He maintains: “Gun ownership should never be outlawed, just as it isn’t outlawed in Britain or Australia. But it doesn’t need a blanket Constitutional protection, either.”

Just last year, Drexel University law professor David Cohen, writing in Rolling Stone, likewise proposed repealing the Second Amendment “because it is outdated, a threat to liberty and a suicide pact.”

Stephens and Cohen, like the vast majority of Democrats and Republicans in Congress, the media, and the general public, misconstrue the nature of the Second Amendment.

The Constitution as it was ratified by the states in 1787 and 1788 contained neither the Second Amendment nor any language about guns. The Second Amendment was added to the Constitution as part of the Bill of Rights (the first ten amendments to the Constitution), which the requisite number of states approved on December 15, 1791. The twenty-seven words of the Second Amendment read: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

The Second Amendment confers no positive right. It recognizes a pre-existing right. It is an additional limitation on federal power to infringe upon gun rights besides the fact that no authority is granted to the federal government in its limited, enumerated powers to infringe upon them in the first place.

Only once in American history was a constitutional amendment repealed. The Twenty-first Amendment of 1933 repealed the Eighteenth Amendment of 1920 that instituted Prohibition. What would happen if the Second Amendment were repealed?

Absolutely nothing.

If the Second Amendment didn’t exist, Americans would still have the natural right to keep and bear arms. This is because there is no authority granted to the federal government by the Constitution to ban, regulate, or otherwise infringe upon the right of the people to keep and bear arms.

The federal government has no authority whatsoever under the Constitution—even if the Second Amendment were repealed—to ban or regulate handguns, high-caliber guns, shotguns, sawed-off shotguns, rifles, assault rifles, extended-capacity magazines, bump sticks, ammunition, automatic weapons, machine guns, grenades, or bazookas.

And neither does the federal government have any authority whatsoever under the Constitution to establish or mandate gun-free zones, background checks, waiting periods, trigger locks, limits on gun purchases, age restrictions on gun purchases, gun-barrel lengths, concealed weapons laws, licensing of gun dealers, gun-owner databases, gun licensing, or gun registration.

If anything should be repealed it is all federal gun laws—even the ones supported by Republicans and conservatives.